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Tuesday, February 11, 2014

AG Urges Court: Allow Woman To Leave Son Uncircumcised

Attorney General Yehuda Weinstein urged the High Court of
Justice on Tuesday to overturn a rabbinical court ruling ordering a woman to
circumcise her son.

In a brief submitted to the High Court, Weinstein said the
rabbinical court had “exceeded its authority.” Moreover, he added, “it’s
doubtful that the rabbinical court’s decision was based on the principle of the
child’s welfare.”

The case arose out of divorce proceedings between the woman,
known as Elinor, and her estranged husband. During those proceedings, conducted
in the Netanya Rabbinical Court, the husband, angry over Elinor’s refusal to
circumcise their son, asked the court to order her to do so.

The rabbinical court sided with the father, saying that
circumcision is a religious obligation. It also ruled that for every day on
which Elinor refused to circumcise her son, she would be fined 500 shekels
($142) for contempt of court.

This decision was subsequently upheld by the
Rabbinical Court of Appeals, which added that circumcision would also benefit
the child: He will want to integrate into the society of which he is part, and
in a country where most of the population is Jewish, most boys are circumcised.

In December, Elinor appealed this decision to the High
Court. Via attorneys Marcella Wolfe and Avigdor Feldman, she argued that
forcing her to circumcise her son constituted religious coercion and violated
her right to freedom from religion. Her attorneys also raised technical
arguments about whether the rabbinical court had the authority to issue such an
order.

The High Court issued an interim injunction freeing her of
the need to pay the fine while the case was being heard, and an expanded panel
of justices is due to hear the main case on February 25.

In the brief he submitted on Tuesday, Weinstein urged the
court to accept Elinor’s appeal, saying the rabbinical court had no authority
to issue its ruling.

Nevertheless, he rejected her claim that no court has the
right to order her son circumcised against her will. Specifically, he cited two
earlier cases in which family courts ordered a boy circumcised over the
objections of one parent.

He also cited a case in which a family court ordered
a child placed on dialysis over the objections of both parents, and a case in
which a family court ordered psychological counseling for a child when the
parents were divided over the issue, with the mother in favor and the father
against.

The question of whether the rabbinical court had authority
to issue its ruling is central to the case. Elinor’s attorneys argued that the
rabbinical courts have authority only over marriage and divorce.

Weinstein
similarly argued that the parental fight over circumcision should have been
resolved in a civil court rather than a religious one, though he noted that
this question has never been fully addressed in either the law or court
rulings. But in any case, the question of whether the boy should be circumcised
shouldn’t be decided as part of a divorce proceeding, Weinstein said.

“Our position is that in a situation where the circumcision
entails anesthesia (or sedatives) − or so it is claimed − and therefore
requires a doctor’s examination, then the circumcision is similar to medical
treatment,” Weinstein wrote.

“Thus the question of whether the circumcision
should be performed ought to be decided by the primary courts that deal with
medical treatments of minors, which are the civil courts.

Even if the battle
over the circumcision was born of a dispute between the parents, the decision
on the matter, which requires a medical opinion, should still be made by the
court authorized by law to discuss issues relating to the health of minors.”

Circumcision doesn’t usually require either anesthesia or
sedatives, but Elinor had argued that it would in her son’s particular
circumstances.

The medical issue also contributed to Weinstein’s conclusion
that the rabbinical court hadn’t taken the child’s welfare into consideration.

Because anesthesia is required, he said, the court should have requested a
medical opinion before issuing its ruling. But even had there been no medical
issue, he added, the welfare of the child required the court to request an
evaluation by a social worker and to seek the attorney general’s opinion before
making its decision.

The rabbinical court had argued that no medical opinion was
necessary, because circumcision is a routine action performed on thousands of
children, and normally no medical check-up is required.